In brief

On 7 June 2023, Law No. 31775 was published, amending the Criminal Code and the Law for the Repression of Anti-competitive Conduct.

In depth

1. Abuse of dominant position and collusive practices will no longer be criminally enforced.

Article 232 of the Criminal Code is amended to establish that only economic agents participating in naked horizontal agreements (absolute prohibition or per se ilegal) may be criminally sanctioned, that is, in an agreement that: i) is not complementary or accessory to other lawful agreements; and, ii) the purpose of which is:

Fixing prices or other commercial or service conditions
Limiting production or sales
The allocation of customers, suppliers or geographical areas
Bid-rigging

2. Whoever applies to the leniency program may be exempt from criminal liability.

Whoever has obtained total immunity under the scope of the leniency program, regulated by the Article 26 of the Law for the Repression of Anti-competitive Conduct, may be exempt from criminal liability.

Previously, the fact that an economic agent had obtained total immunity for collaborating with the antitrust authority as result of the application to the leniency program, did not exonerate it from criminal sanction. The purpose of this amendment is to encourage economic agents to apply for the leniency program without fear of being criminally sanctioned.

3. Obligation to serve final resolutions to the Public Prosecutor’s Office

INDECOPI and OSIPTEL must serve the Public Prosecutor’s Office with the final resolution on the existence of an anti-competitive practice subject to a per se prohibition within five working days from issuance, under functional responsibility (Article 36.4 is included in the Law for Repression of Anti-competitive Conduct).

4. Initiation of preparatory investigation in criminal proceedings

The Public Prosecutor’s Office must initiate the preparatory investigation for the commission of the crime of abuse of economic power when it becomes aware of the final resolution referred to in the previous point.

The amendments entered into force the day after the publication of the law.

We hope this information has been useful for you. Please do not hesitate to contact us if you require any further advice.

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